Opinion
E073113
01-21-2020
In re A.W. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.W. et al., Defendants and Appellants.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant C.W. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant D.T. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J271452, J271453, J271454 & J273456) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant C.W. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant D.T. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
C.W. (Mother) and D.T. (Father) appeal from the juvenile court orders terminating their parental rights to their four daughters, seven-year-old Am.W.T. (Am.), five-year-old S.W.T. (S.), four-year-old As.W.T. (As.), and two-year-old D.W.T. (D.). The children were removed from parental care and declared dependents of the court based on allegations of severe physical abuse inflicted upon Am., medical neglect of As. and S., and Mother and Father's (Parents) unresolved substance abuse issues. (Welf. & Inst. Code, § 300, subds. (a), (b), (e), (j)). Following a contested section 366.26 hearing, the juvenile court ordered Parents' parental rights to their four children terminated.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
In separate appeals, Parents argue the juvenile court erred in denying the parental relationship exception to termination of parental rights (§ 366.26 (c)(1)(B)(i)). We find no error and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The summary of facts and procedural background are taken primarily from our recent unpublished decision in Mother's appeal of the order denying her section 388 petition (In re A.W. (Sept. 4, 2019, No. E072047) [nonpub. opn.] (A.W., E072047)). This court ordered the record in the previous appeal incorporated in the record in the instant case. The instant summary also includes facts and court proceedings from the record on appeal in the instant appeal, which includes court proceedings after denial of Mother's the section 388 petition. Also added are facts and proceedings relevant to Father's current appeal, which might not have been mentioned in the factual summary in Mother's previous appeal.
"The family came to the attention of the San Bernardino County Children and Family Services (CFS) on June 12, 2017, after Am., then age four, was transported to Loma Linda Children's Hospital (Loma Linda) by Emergency Medical Services (EMS). Reportedly, Am. stopped breathing and turned blue when her neck got entangled in a seat belt while riding in the backseat of Mother's car. Mother was very uncooperative with hospital staff.
"Am. was eventually examined by staff at Loma Linda. Am. presented with marks and bruises which appeared to be unrelated to the seat belt incident. When asked about the seat belt incident, Am. stated '"I put the seat belt around my neck on purpose."' Am. did not provide any further explanation. When the social worker pointed to the numerous marks and bruises on her and asked her about the new and old marks on her arms, legs, and back, sometimes Am. responded '"papa" did it' and others '"my mom."' Am. further asserted, 'I was not supposed to say that.' The marks and bruises appeared to be non-accidental injuries inflicted by an instrument such as a belt.
"Mother refused to cooperate with and provide any information to the social worker. She also refused to give the hospital authorization to treat Am. and wanted to take the child home. Regarding the seat belt incident, Mother explained that she was on her way back from a grocery store with Am. and S. in the backseat while the maternal grandfather rode in the front passenger seat of the car. Mother was unaware of the developments in the backseat until the maternal grandfather jumped in the backseat trying to help Am. with the seat belt wrapped around Am.'s neck. Mother ultimately stopped the car and located a glass bottle. She gave the bottle to the maternal grandfather who broke the bottle and then used it to cut the seat belt. They called EMS when Am. started turning blue. Mother noted this was not the first time that Am. had placed something around her neck to harm herself. She also stated that the family became homeless in January 2017. Since then, Mother and her three children resided with the maternal grandparents and their 11-year-old son at a motel. Father was incarcerated for possession of cocaine for sale at the time.
"When the social worker met with Am.'s sisters, S. and As., she noted that the two girls suffered from severe lymphedema in the lower extremities and feet. The children's feet were so swollen that they could not wear shoes or walk. The children did not receive medical treatment for the condition. The parents refused to allow any treatments in anticipation that the children would 'grow out of it.'
"Based on Am.'s attempts to harm herself, the unexplained bruises and marks as well as the medical neglect of As.'s and S.'s lymphedema, CFS believed the children remained at risk of further harm, physical abuse, or neglect without removal. The children were taken into protective custody as Mother was arrested for child abuse.
"On June 14, 2017, petitions were filed on behalf of As. and S. pursuant to section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). On this same date, a petition was also filed on behalf of Am. pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (g) (no provision for support) counts.
"At the June 15, 2017, detention hearing, the children were formally removed from parental custody. Mother was provided with services pending the development of a case plan and the jurisdictional/dispositional hearing. Mother was also provided with supervised visits one time per week for two hours and ordered to drug test that day.
"CFS recommended to dismiss the (g) (no provision for support) allegations and find true the remaining allegations. CFS also recommended reunification services for both parents. Mother reported that she had never known any of her children to have any marks and bruises on them or the origins of Am.'s older marks and bruises. She explained Am.'s marks and bruises were caused by her attempts to free the child from the seat belt. Later, Mother claimed her brother caused the bruising when he 'stomped' on Am. She also asserted her brother was a gang member and she was scared for her life. Consequently, due to her fear, she did not report the origin of Am.'s injuries.
"Mother's explanation for Am.'s marks and bruises, however, contradicted the medical findings made at Loma Linda. According to the June 12, 2017 Loma Linda medical report, Am. presented with 'significant extensive numerous patterned bruising on her bilateral linear extremities, bilateral hips, buttocks,' and upper left part of the back, which were 'consistent with being struck with an implement.' During the exam, Am. disclosed being struck with a belt by her mother, which was consistent with the noted injuries. Am. reported that '"momma hits belt"' and described the belt as '"black."' Am. further explained that '"nana hits with a belt Papa hits with a shoe."' Am. was talkative and was able to explain her bruises with '"Mommy hit everywhere with her belt."' However, Am.'s facial petechiae and posterior neck bruising appeared to be consistent with the explanation of being trapped by the seat belt. The forensic medical report was marked for physical abuse.
"Am. was also seen at the Children's Assessment Center (CAC) on June 12, 2017. A forensic pediatrician, Dr. Siccama, noted extensive marks and bruising on Am.'s body. Dr. Siccama marked an abnormal skeletal survey result on Am.'s CAL-EMA. The doctor also recorded a 'healing left supracondylar fracture with periosteal bone formation in anatomical alignment.' When asked about her injuries, Am. stated '"mommy hit everywhere with her belt."' Dr. Siccama opined Am. was a victim of physical abuse.
"On June 22, 2017, As. and S. also underwent forensic medical evaluations at the CAC. As.'s findings reflected 'healed scattered scars on right lower leg and a healed linear scar on right upper arm.' The finding was 'non-specific' and required more information. A forensic interview of the older sibling was recommended. As. also had bilateral lower extremity edema with the right extremity being more prominent than the left one. S.'s CAC examination revealed a concern for the edema affecting the lower extremities, the right one more prominent than the left one. S. presented with healed scars on bilateral upper extremities, right thigh, and left part of groin. Although the findings were 'non-specific' in nature, the evaluations showed the results as 'suspicious for physical abuse.'
"On July 25, 2017, Am. and S. participated in a forensic interview at the CAC. Am. asked several times if the interviewer would disclose Am.'s statements to Mother. Am. was concerned that Mother would become '"angry"' with her if the interviewer disclosed what was discussed to Mother and that Mother would hit her. Am. eventually disclosed that Mother dispenses '"little hits"' on the child's hands and '"bigger hits when [she] be bad."' Mother normally hit Am. with a belt, but sometimes she would hit with 'Nana's shoe' on the nose. S. had trouble focusing and was difficult to understand as her speech was still developing.
"Mother had a prior child welfare history with referrals for emotional abuse, general neglect, severe neglect, physical abuse, and caretaker absence dating back to 2012. These referrals were closed as inconclusive and/or unfounded. An October 2012 referral involved substance abuse, which caused CFS to be concerned about Mother's untreated history of substance abuse. Mother was ordered to drug test at the detention hearing. Her drug test result was negative for all substances. In addition, the October 2012 investigation revealed that Mother had been diagnosed as having mild mental retardation, and a history of bipolar disorder, oppositional defiant disorder, and a borderline personality disorder. Mother also had substantiated CFS history as a minor and had previously been a client of Inland Regional Center (IRC). At some point, Mother reported to the social worker her fears that CFS and the police department were trying to kill her, and she wanted the media to supervise her visits because she believed the social worker was going to 'harm her' or 'jump on her.' Mother also believed the social worker was racist. Due to Mother's history of mental health concerns, CFS requested Mother to participate in a psychiatric evaluation.
"CFS reported the prognosis for reunification was 'very guarded.' Mother appeared hostile throughout the investigative process. Additionally, she maintained that physical discipline was not practiced in the household and was unwilling to engage in services. By August 2017, Mother's aggressive behavior escalated to the point where As.'s and S.'s foster parents feared for their own safety and requested removal of the two girls. As. and S. were placed in a new foster home on August 1, 2017. Mother continued her aggression on the social workers, supervisors, and CFS staff in the children's presence during her visits. At one of the visits, Mother threatened to blow up the building. In response, CFS requested to suspend Mother's visits.
"A hearing on CFS's request to suspend visits was held on September 14, 2017. Although the juvenile court acknowledged that Mother's behavior was inappropriate and CFS was within its rights to stop the visits out of concern for the safety of its employees when criminal threats were involved, the court instituted trial visits and ordered Mother and Father to visit separately. At Mother's request, the court granted gas cards to Mother.
"On September 14, 2017, based on the injuries discovered at the CAC forensic evaluation, CFS amended Am.'s petition to include a severe physical abuse allegation pursuant to section 300, subdivision (e). CFS also recommended that the court deny reunification services to Mother and Father under section 361.5, subdivisions (b)(5) and (b)(6).
"In October 2017, Mother gave birth to her fourth child, D. CFS was concerned about D.'s well-being given that the child's siblings had been detained for severe physical abuse and Mother had not fully engaged in her required services. Of concern was also the fact that Mother left with D., and her whereabouts were unknown. On October 23, 2017, CFS located Mother and D. and took the child into temporary protective custody pursuant to a detention warrant.
"On October 25, 2017, a petition was filed on behalf of D. pursuant to section 300, subdivisions (b) and (j). D. was formally detained and removed from parental custody at the detention hearing held the following day. The parents were ordered to drug test that same day and advised that no reunification services may apply pursuant to section 361.5.
"A pretrial settlement conference hearing was held on November 16, 2017. At that time, the parties reached an agreement. Mother agreed with the severe physical abuse and medical neglect allegations, and CFS agreed to dismiss the substance abuse allegations against Mother without prejudice and the no provision for support allegations. Mother executed a waiver and pleaded no contest to jurisdiction. The juvenile court found true the allegations in the petitions as amended and as agreed to by the parties. The court declared the children dependents of the court and continued the matter for a contested dispositional hearing.
"By the contested dispositional hearing on November 30, 2017, CFS continued to recommend no reunification services for either parent and to set a section 366.26 hearing for adoption. The children were placed together with a non-related extended family member, Ms. S. The November 30, 2017, dispositional hearing was continued to February 5, 2018.
"By January 31, 2018, Mother had completed several programs through Shields for Families and submitted certificates of [completion]. She had completed a parenting class; group counseling; an anger management class; a domestic violence class; family education; an alcohol and drug education class; a residential treatment program; a relapse prevention class; and a class dedicated to gender issues. CFS noted that the certificates did not provide information regarding the number of sessions attended for each service or Mother's level of benefit.
"CFS spoke with Mother's counselor at Shields for Families. The counselor reported that the maternal grandmother was a 'trigger' for Mother and contributed to Mother being impulsive. The counselor also stated that Mother had an unhealthy relationship with Father and that they had a history of domestic violence and substance abuse. Overall, the counselor reported that Mother was doing 'very well in the program and ha[d] made a lot of progress within the last month.' Mother had started a new job and participated in the inpatient program. Mother's counselor noted that Mother had realized and acknowledged that she needed to work on becoming less impulsive and having a 'professional, respectful approach and interaction with other people.'
"The contested dispositional hearing was held on February 5, 2018. Mother testified at that hearing. In relevant part, Mother maintained that it was her brother who had caused the marks and bruises on Am. by stomping on her leg and hitting her with a closed fist. Mother explained that her brother was a 'gang banger' and she was in fear for her life and the lives of her family members. Mother acknowledged that she had originally given a different statement as to how Am. sustained her injuries. Mother indicated she did not understand the 'horrible' extent of Am.'s injuries caused by her brother until she viewed the pictures taken at the hospital. However, having participated in several programs through Shields for Families, she learned that '[CFS] is not here to harm us, but it's here to help us.' The program was prepared to assist Mother with housing if the children were to be returned to her custody. She reported having enjoyable visits with the children wherein the children and her color, make food, and play together. She believed that she had a 'strong bond' and 'close relationship' with the children and that she would be able to protect the children and prevent harm to them in the future.
"Mother admitted to having yelled and hitting the children with a belt, a flip-flop, a 'choncla,' and her hand. However, she denied seeing any scars or bruises following the disciplining. Mother continued to deny that the children had old and new bruises and claimed they were birthmarks. She also stated that her brother hit Am. with a belt, and when asked why she had not disclosed that information earlier during her testimony, she asserted that 'Nobody asked me.' When asked how Am. received her bruises, Mother stated, 'I don't know.' Mother also did not believe her mother was a trigger for her despite her therapist's opinion.
"The children's caregiver also testified. She explained that the children were happy to see Mother at the beginning of visits and that the children cried when visits ended. She stated that the children asked about Mother in between visits and when they would be going home. She acknowledged that the children acted happy when they returned from the visits but noted that the children and Mother were mutually close to each other.
"Following testimony, CFS's counsel argued the court should deny reunification services to the parents. Counsel questioned Mother's credibility when Mother claimed she had not seen any bruises on Am. despite the fact that Mother had bathed the child the day before the seat belt incident and the child went swimming with the family the day of the incident. Counsel also pointed out that it took Mother five months and several different social workers before Mother disclosed the new explanation on how the child sustained the marks and bruises, blaming the maternal uncle for the injuries despite the fact that the child clearly identified Mother and the maternal grandparents as the culprits of the injuries. While acknowledging Mother's progress in services, CFS's counsel pointed out that Mother's testimony was self-serving and lacked insight into the triggers of Mother's anger. Counsel also argued that providing services was not in the children's best interest. Minors' counsel argued that Mother did not appear to benefit from the services she was taking and that there was no indication whether she would be able to protect the children. Mother's counsel argued that reunification services were in the best interest of the children because she shared a bond with the children.
"Following argument, the juvenile court acknowledged that it had been 'tempted to give [Mother] services' because Mother's demeanor had changed demonstrating benefit in services. However, the court questioned Mother's truthfulness, and did not find Mother's testimony credible. The court nonetheless invited a section 388 petition from Mother explaining that it 'need[s] some more honesty about what is going on.' The court denied reunification services to the parents pursuant to section 361.5, subdivision (b)(5), (6), and (7), and set a section 366.26 hearing.
"On February 9, 2018, Ms. S. requested the children to be removed from her care due to financial reasons. As a result, on June 5, 2018, CFS requested a continuance of the section 366.26 hearing to locate an adoptive home. The children were making progress medically and emotionally. Developmentally, IRC did not find As., S., and Am. qualified as disabled children. D., however, 'failed in the personal-social, fine motor-adaptive, language, and gross motor areas.' Therefore, she was referred to IRC for services. In regard to the visits, no visits took place in the month of March 2018 because of Mother's incarceration and transportation issues. When Mother did visit, the visits were appropriate.
"On June 5, 2018, the court granted CFS 120 days to seek an adoptive placement for the children. A further section 366.26 hearing was set for October 3, 2018.
"At the October 3, 2018, hearing, CFS requested another 180 days to identify an adoptive home for the four children. D. was diagnosed with a growth problem and developmental delays, and referred for services to IRC and the Screening, Assessment, Referral and Treatment program (SART). The other three children were referred to Children's Treatment Services at SART. Nonetheless, CFS found the children to be appropriate for adoption. Mother continued to visit the children frequently during this reporting period. The visits were appropriate with no reported concerns. On October 3, 2018, the court continued the matter and set a further section 366.26 hearing for April 3, 2019.
"On October 30, 2018, Mother filed a 388 petition, requesting the court vacate the section 366.26 hearing and grant her reunification services. In support, in her written declaration, Mother relied on the certificate of completion presented at the contested dispositional hearing on February 5, 2018, which Mother 'hoped would convince the court that she should be granted reunification services.' Mother also asserted that she attended 12 sessions of individual counseling where she 'address[ed] the problems in her life that lead [sic] to the removal of her children.' Furthermore, Mother '[took] steps to firm up her sources of income' with her social security income and by attending training to become a security guard. Mother explained that the modification of the prior court order was in the children's best interest because 'they [were] not in a concurrent home at this time' and it would give them 'a chance to reunify with their Mother.' Mother also referred to her frequent visits with the children that went well and were 'appropriate for all concerned.'
"On November 1, 2018, the court set the matter for a prima facie hearing and ordered CFS to respond.
"CFS recommended that the court deny Mother's section 388 petition. On November 14, 2018, the social worker spoke with Mother to discuss Mother's request. When asked about Am.'s severe physical abuse, Mother reported that she '"lied on the stand"' when she previously testified that it was her brother who had caused Am.'s injuries. She now claimed it was the maternal grandmother who had hit Am. with a belt and caused the child's injuries. Mother stated that the maternal grandmother hit the children prior to CFS involvement and when the children reported the abuse, Mother ignored them because she '"wanted to hang out with friends and go to the club."' Mother also explained that maternal grandmother suffered from alcohol abuse which perpetuated the physical abuse when the maternal grandmother was drunk. Consequently, the maternal grandmother lost custody of Mother's younger brother. Mother further asserted that she distanced herself from the maternal grandmother.
"The social worker also met with Am. on November 26, 2018, to discuss the child's thoughts on the permanent plan of adoption and the possibility of returning home. Am. was 'swift and absolute' when declining the idea of returning to her mother. Instead, Am. wanted to return to a respite caregiver who provided temporary care to the child in September 2018. Am. also stated that she was comfortable in her current placement and that she did not feel safe with Mother. She reiterated that she wanted to stay with the respite caregiver. When the social worker attempted to explore with Am. the reason(s) why she did not want to return to her mother, Am.'s 'mood shifted from excitement to quiet and reserved.' On the other hand, S. reported feeling safe with Mother and expressed her interest in returning home to Mother. As. agreed with S.
"CFS was concerned that despite Mother's acknowledgment that the maternal grandmother physically abused Am., Mother continued to rely on the maternal grandparents for support. In addition, Mother continued to advocate for the maternal grandmother to have regular visits with the children and to participate in special occasion gatherings with the children. While the social worker commended Mother for completing her services, the social worker believed the inconsistencies in Mother's actions and a new explanation of the children's injuries indicated Mother's failure to benefit from services. The social worker also noted that Mother had not addressed the severe physical abuse inflicted on Am. Additionally, the social worker indicated that an adoptive home had been located in San Joaquin County and CFS intended to transition the children into their new home. The prospective adoptive family was excited about welcoming all the girls into their home and were eagerly awaiting the placement to occur. CFS continued to recommend the setting of a section 366.26 hearing with a plan of adoption as it remained in the best interest of the children. CFS also recommended that the parents' visits be reduced to one time per month supervised for two hours due to the parents' inconsistent visits and the distance of the prospective adoptive home.
"A prima facie hearing on Mother's section 388 petition was held on December 17, 2018. Mother's counsel commended the social worker's report as 'a very well-written and informative response' and noted staff from IRC was at the hearing to offer Mother support. Counsel acknowledged that Am. had a different opinion regarding her return home from her other two siblings. However, counsel argued, the children were bonded to Mother and they were not in a concurrent planning home. Counsel also asserted that Mother loved the children, the children were bonded to Mother and to the family, and that an effort should be made to reunite the family before they are moved up North to San Joaquin Valley area. Counsel further noted that Mother laid the blame of 'some of the [physical] abuse' on the maternal grandmother, however, she understood that she was ultimately responsible for the children's safety and wanted to keep the entire family together.
"Minors' counsel stated he was 'on the fence,' and noted, 'While Mother's done some things, . . . it's still unclear as to what really happened and Mother still hasn't taken complete responsibility for her actions.' CFS's counsel pointed out that Mother's explanation of Am.'s injuries was 'the third story the mother has given.' Mother's first explanation was that no marks or bruises existed and Am. was not physically abused by either parent; the second explanation was Mother's brother abused the children and that they were scared of him and got a restraining order against him; and now the culprit of the abuse was the maternal grandmother. Counsel reminded the court that because the denial of the reunification services was based on severe physical abuse, Mother's burden of proof was heightened to clear and convincing evidence and the injuries were consistent with being hit with a belt. Counsel further argued that because an adoptive home had been identified for the sibling set of four, it was in the best interest of the children to be transitioned altogether, particularly because D. had never lived with Mother and the youngest sibling had been out of Mother's care for over a year. Counsel also asserted that the only two girls with a potential bond to Mother were Am. and S., and Am. was adamant on not wanting to return to Mother.
"The juvenile court agreed that the focus was on the best interest and safety of the children. The court did not find a substantial change in circumstances or best interest of the children to justify a further hearing. The court encouraged Mother to 'come clean and address' the reasons for the children's removal and present another section 388 petition to show the court 'a substantial change and that somehow she's in the best interest of the children.' The court, therefore, denied Mother's section 388 petition without an evidentiary hearing. In addition, because the focus shifted to permanency and the children were being transitioned into an adoptive placement home out-of-county, the court reduced the parents' visits to twice a month, 'one of those times . . . halfway' with a 24-hour confirmation. The court also requested CFS to consider helping the parents financially with 'one time halfway visit one time a month.'
"On January 25, 2019, Mother filed a timely notice of appeal challenging the denial of her section 388 petition without an evidentiary hearing." (A.W., supra, E072047.)
In Mother's previous appeal (A.W., supra, E072047), she requested this court to reverse the juvenile court order denying her section 388 petition, vacate the section 366.26 hearing, and grant her reunification services. Mother argued the juvenile court abused its discretion and violated her due process rights by denying her section 388 petition without an evidentiary hearing. We concluded Mother failed to make a prima facie showing that granting her section 388 petition and providing reunification services was in the best interests of the children. We therefore affirmed the order summarily denying Mother's section 388 petition. (A.W., supra, E072047.)
A. Additional Facts Regarding Father
At the time the children were taken into protective custody in June 2017, Father was married to Mother but was not living with the family in San Bernardino. Father was incarcerated in April 2016, and was released in January 2017. In June 2017, Father was living apart from his family, in a half-way house, with an anticipated release in September 2017. Father informed CFS in June 2017, that he was incarcerated for possession and sales of cocaine, and had entered a transitional housing program in March 2017, in Van Nuys, California. Father has an extensive criminal history, which includes convictions in 2013 and 2016 for possession of cocaine base for sale (Health & Saf., § 11351.5), assault with a deadly weapon in 2014 (Pen. Code, § 245, subd. (a)(1)), and reimprisonment (Pen. Code, § 3056).
In November 2017, Father told CFS that in 2016, Am. broke her arm when her uncle, R.S., who was visiting, threw her on a bed at her home. Father said he was not present. Father acknowledged he was unaware of the incident until recently. Father, who was not living with his family in June 2017, reported that he could not explain why Am. had extensive, numerous, patterned bruising on her body. Father stated that neither he nor Mother physically disciplined their children. After the children were taken into protective custody, Father visited them on June 28, 2017, and July 5, 2017, for two hours. Parents reportedly responded to CFS staff in an angry and hostile manner. During the July 2017 visit, Parents were verbally aggressive with the foster parents in front of the children.
At the time of the birth of Parents' fourth child, D., in October 2017, Father was still living in a half-way house, apart from the family. By November 2017, Father was living with Mother in Compton. Father enrolled in the Shields for Families program and was attending classes in parenting, domestic violence, and drug abuse. Father reportedly was actively participating in counseling. Father was also regularly visiting the children at a CFS office. Both Parents reportedly were doing well with visitation and were responsive to the children.
On January 25, 2018, Father was terminated from his counseling programs for non-attendance. By June 2018, Father was still living with Mother in Compton, and had supervised visitation with the children once a week for two hours. The visits were appropriate, without any reported concerns. By October 2018, Father was not as consistently visiting the children. By December 2018, Father continued to visit the children once a week for two hours supervised. He occasionally missed a visit, sometimes because of transportation problems and work-related issues. Father was working as a security guard.
B. Post-section 388 Hearing Facts and Proceedings
In January 2019, D. was placed with her three sisters, and the children were placed together in a new prospective adoptive home in Northern California. In March 2019, CFS reported in a supplemental section 366.26 hearing report and permanency planning assessment that the children were in good health, with the exception of three of the children having genetic lymphedema, which was managed with compression stockings. The children were reportedly developing mutual attachment with their prospective adoptive parents. Am. and S. were exhibiting development delays and emotional disturbances. The children were strongly bonded to each other. The three oldest children were on their fifth placement and D. was on her fourth placement.
CFS concluded the children were adoptable in their stable placement. Their prospective adoptive parents wished to adopt them, were committed to caring for the children as a sibling set, and held no legal impediment to adopting them. The prospective adoptive parents had four boys, two of whom were the foster mother's biological children, and two were the foster father's nephews whom the couple adopted. The foster parents worked full-time and the foster mother was attending law school.
On April 3, 2019, CFS reported that Father had weekly telephone contact with the children, and Parents were consistent in visiting the children, with the exception of missing one visit because of a transportation issue. Mother was consistently visiting the children twice a month and participated in weekly phone calls with the children. CFS reported that in March 2019, the supervising social worker spoke to Am. about adoption, wherein Am. said she was okay with never seeing Parents again and remaining in her foster parents' home. Am.'s foster mother reported Am. appeared fearful, anxious and sleepless because she had overheard her foster mother and the social worker discuss the upcoming court hearing. Am.'s foster mother stated that Am. was nervous about returning to Parents. The social worker reported that Am. appeared relieved when assured she could stay with her foster parents.
The social worker reported that during a June 2019 visit, Am. said she did not want to go home with Mother, and Mother told her that if she didn't, she likely would be separated from her sisters. Am. told the social worker that it was okay if she lived with Mother and Mother "can whoop me." Am. just wanted to be with her sisters. Am. told the social worker that Mother told the children to tell the court they all wanted to go home with Mother. Am. told her sisters "to tell the court we want to go home so we can stay together." She added that "[I] will be good and [I] won't tell if mom hit me[.] [O]k[?]"
On July 2, 2019, the juvenile court conducted a contested section 366.26 hearing. Am., who was almost seven years old, testified she loved Parents, and wished to live with them and her sisters. She said she called them "'Mom'" and "'Dad,'" but also called her foster parents "'Mom'" and "'Dad.'" Am. believed she had two moms and dads. Am. testified she preferred to live with Parents, rather than with her foster family, but if she could not live with Parents, she wanted to live with her foster parents. Am. said she would be sad if she could no longer see Parents.
Am. further testified that she discussed with her sisters and the social worker the prospect of living with Parents. Am. did not know if she enjoyed living with her foster parents. She testified her foster parents had been nice to her. Am. further stated she did not know if she liked living with her foster brothers. She said they were mean and one of them had hit her. Am. acknowledged that the boys could be fun to be with. Am testified she did not recall telling the social worker she wanted to live with her foster parents.
Adoptions social worker R. Wright testified she believed Am. understood what adoption meant when Am. said she wanted to be adopted. Wright further testified that Am. had not told her she wanted to return to Parents' home. Case servicing social worker C. Williams testified S. (five years old) and As. (three years old) told her they wanted to return to Parents' home. When asked if Williams had any concerns regarding the children's visits, Williams stated that during the visits, Parents had promised the children that, when the children returned to their home, they could have things such as gold necklaces and iPhones.
During the section 366.26 hearing, CFS recommended terminating parental rights, and minors' counsel agreed. Parents objected. The juvenile court found the children adoptable. The court also rejected the claim that the parental relationship exception to adoption applied. (§ 366.26 (c)(1)(B)(i).) The court found that, although Parents had established that they had regular beneficial contact with the children, Parents held the role of friendly visitors, rather than as parents. The court further found Parents failed to show that the benefit of continuing their contact with the children was sufficient to overcome the preference for adoption, or that the children would be irreparably harmed by termination of parental rights. The juvenile court therefore terminated Parents' parental rights and ordered CFS to begin adoption proceedings.
III.
PARENT RELATIONSHIP EXCEPTION
Parents contend the juvenile court erred in not applying the parental relationship exception to adoption. (§ 366.26 (c)(1)(B)(i).) We disagree.
A. Law Regarding the Parental Relationship Exception
Termination of parental rights and adoption must normally be ordered if the juvenile court finds a child is adoptable unless the court finds "a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "[T]he burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; accord, In re E.T. (2018) 31 Cal.App.5th 68, 76.) "'[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only "'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did.' . . . "'" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
B. Parents' Relationship With the Children
Parents contend the trial court erred in rejecting the parental relationship exception, finding that the children would not benefit from continuing their relationship with Parents. We conclude substantial evidence supported the court's findings and there was no abuse of discretion in rejecting the parental relationship exception to adoption.
It is undisputed that Parents, for the most part, regularly visited the children, and the children enjoyed their visits. However, Parents have not demonstrated they filled a parental role in the children's lives at the time of the section 366.26 hearing, and any benefit from their relationship with the children was outweighed by the benefit to the children of living in a permanent adoptive home.
"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child[;] (2) the portion of the child's life spent in the parent's custody[;] (3) the positive or negative effect of interaction between the parent and the child[;] and (4) the child's particular needs." (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) "Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
"Evidence of 'frequent and loving contact' is not sufficient to establish the existence of a beneficial parental relationship." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316; see In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Once a dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child's best interests and, therefore, not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.)
We conclude there was insufficient evidence of a significant, beneficial parental bond, particularly as to the two youngest children. There was also little, if any, evidence the children would suffer detriment from terminating parental rights. The children were young when removed from Mother in June 2017. Am. was four years old, S. was three years old, As. was one year, and D. had not been born. Father was incarcerated at the time. He was incarcerated about a year before, in April 2016, when Am. was three years old, S. was two years old, As. was eight months old, and D. had not been born. By the time the court terminated parental rights, the three older children had not lived with Mother for two years. D. was removed from Parents' custody one week after she was born. The children thus had lived with Parents for a very short portion of their young lives. With the exception of Am., the children likely had very limited memory, if any, of living with Parents. For this reason, Am. may have been the only one who remembered what it was like living with Parents, and this may have been why she was the only one who objected to returning to their home.
Furthermore, there was substantial evidence Am. suffered severe physical abuse. According to Am., Parents beat her. Mother failed to take any responsibility for Am.'s physical harm, instead providing three different explanations as to how Am. was harmed. Mother initially asserted Am. did not have any marks or bruises, which was clearly false. Mother also blamed her brother for Am.'s injuries. Her final explanation was that maternal grandmother was responsible for inflicting physical abuse on Am. Mother failed to address the severe physical abuse allegations. Because of the allegations of physical abuse, the juvenile court ordered bypassing reunification services for Parents, and their visitation was limited to weekly two-hour supervised visits. In December 2018, the court ordered Parents' supervised visitation reduced to twice a month. During the two years of juvenile dependency proceedings, Parents' visits amounted to spending time with the children as friendly visitors, rather than fulfilling a parental role.
Furthermore, Am. reportedly emphatically told CFS she did not want to live with Parents, fearing Mother would beat her, as she had in the past. Although Am. testified to the contrary during the section 366.26 hearing, there was substantial evidence supporting a reasonable finding that Mother had pressured the children to say they wanted to live with Parents. The evidence also supports the reasonable inference that Am. was led to believe that she and her siblings would not be able to live together if she objected to living with Parents. She therefore testified she wanted to live with Parents. In addition, there was evidence Mother had made promises to give the children jewelry and iPhones to persuade them to say they wanted to live with Parents.
There was also substantial evidence that, after the children had been placed in several foster homes, the children were finally placed with prospective adoptive parents who were willing to adopt the four sisters as a sibling set. The children had bonded with the foster family, with whom they had been living for six months at the time of the section 366.26 hearing.
Mother's reliance on E.T., is misplaced. In E.T., the record demonstrated that four-year-old twins, who had lived almost half their lives with mother, were "'very tied to their mother.'" (In re E.T., supra, 31 Cal.App.5th at p. 77.) Here, there is no evidence any of the four children were "very tied" to either parent. The three older children lived with Parents during a short period of their lives, with Father incarcerated during part of that time. The youngest child was not born until after the three older children were removed from Mother, and was removed within a week of her birth. During the time the three older children lived with Parents, Parents failed to provide them with necessary medical care, Am. was physically abused while in their care, and Parents were engaging in substance abuse.
Thus, unlike in E.T., Parents' relationship with the children was merely as friendly visitors. Although Parents visited regularly, there is substantial evidence the children's bond with Parents was not strong and did not outweigh the security and the sense of belonging that the prospective adoptive parents would confer. (In re E.T., supra, 31 Cal.App.5th at p. 77.) Therefore, unlike in E.T., each of the children did not have a substantial and positive attachment to Parents such that terminating their familial relationship would cause them great harm. (Ibid.)
Under these circumstances, we conclude the juvenile court did not abuse its discretion in terminating parental rights and ordering adoption proceedings, because there was substantial evidence the children were strongly bonded to each other, they were bonded to their prospective adoptive family, and the benefit of the children being in a permanent, stable home outweighed any benefit of maintaining the children's relationship with Parents and foregoing adoption.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. MENETREZ
J.